In July 2023, in response to record levels of illegal border crossings, the State of Texas installed a system of buoys in the Rio Grande River to act as a barrier and deter additional crossings. Texas Governor Greg Abbott invoked the Invasion Clause under Article I, Section 10 of the U.S. Constitution as part of the legal basis for Texas’ action. The Biden Administration promptly sued Texas in federal court and received a preliminary injunction in its favor. Texas appealed to the U.S Court of Appeals for the Fifth Circuit which in a 2-1 panel decision affirmed the preliminary injunction.

On July 30, 2024, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, vacated the panel decision and stayed the preliminary injunction. Although the court decided the issue primarily on the issue of whether Texas violated the Rivers and Harbors Act of 1899, its decision has significant, far-reaching implications for state sovereignty, particularly in the context of illegal cross-border activity. Indeed, Fifth Circuit Judge James C. Ho—concurring in the judgment in part and dissenting in part—focused significant attention on the state sovereignty issue.

Judge Ho would have rejected the Biden Administration’s preliminary injunction because, in his view, when a state invokes the Invasion Clause in good faith, it is a non-justiciable political question:

Supreme Court precedent and longstanding Executive Branch practice confirm that, when a President decides to use military force, that’s a nonjusticiable political question not susceptible to judicial reversal. I see no principled basis for treating such authority differently when it’s invoked by a Governor rather than by a President. If anything, a State’s authority to “engage in War” in response to invasion “without the Consent of Congress” is even more textually explicit than the President’s.

Notably, a recent academic article by Professors Robert Natelson and Andrew Hyman bolsters Judge Ho’s position. Their article, The Constitution, Invasion, Immigration, and the War Powers of States, was published earlier this year in the British Journal of American Legal Studies. It argues that under an originalist reading of the Constitution, states have the inherent right to “wage defensive war and take other military action in response to invasion, insurrection, and transnational criminal gangs.”

The article goes on to examine “the under-researched area of state war powers and how they interact with federal military and other foreign affairs powers. It also recovers the meaning of the Constitution’s term ‘invasion’ and demonstrates that several judicial decisions have construed that term far too narrowly.”

The authors’ ultimate conclusion echoes Judge Ho’s: “To be clear: If federal officials are proceeding in good faith to crush an insurrection or repel an invasion, the courts should not second-guess their tactics.” They then extend that conclusion to include state officials, observing that the founders unequivocally reserved to them defensive war powers.

When the article is read in concert with the Fifth Circuit’s en banc decision, it appears that Texas’ strongest argument that it has the right to declare an invasion and take good faith actions in response should rely on Judge Ho’s position. It remains to be seen whether the Supreme Court will take up the issue in the near future.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].